D.C.'s Firestorm Over Beards And Religion

How important is the freedom to express yourself by determining how you look? Is the right to grow a beard, whether as a personal statement or part of a religious belief system, more important than your life or the lives of your co-workers?

A panel of federal court judges has grappled with this question in the case of D.C. firefighters who have argued since 2001 that their faith requires them to have facial hair, even if the city's fire department had rules mandating clean-shaven faces.

The District's rules were not some archaic regimen for enforcing discipline and presenting a clean, efficient face to the public. Rather, the rules are based on fire safety: When a firefighter charges into a burning building, the only thing that gives him a decent chance of getting the job done and coming out alive is the mask that supplies uncontaminated air from a tank rather than the poisonous smoke he must wade through.

In a unanimous ruling last week, a three-judge panel of the U.S. Court of Appeals said the city must let firefighters wear beards because there is a breathing apparatus that works even with facial hair. But one of the three judges, Stephen Williams, issued a scathing separate opinion saying that if it weren't for the District's "muddled litigation strategy," the court would have come down on the opposite side. "If the sole aim of the law were an open search for truth, we would plainly reverse" the lower court ruling in the firefighters' favor, Williams wrote.

Williams looks beyond the legal arguments and focuses on the actual evidence about how the fire department's breathing apparatus operates--and what he finds is that facial hair can break the mask's seal with firefighters' skin, allowing them to breath in noxious smoke. The judge notes that federal safety regulations conclude that "facial hair poses risks for the use of respirators generally." Williams says this ruling will open the door for the District to conduct an experiment with the lives of its firefighters.

Maybe it's not strictly a federal appeals court judge's role to look for the right thing to do, but as Williams notes, "While a judge isn't a pig hunting for truffles in the parties' papers, neither is he a potted plant." And this non-potted plant is shooting up a warning flare: Because of the ruling allowing facial hair, "the likelihood of acute calamity--and thus the risk that response teams will be stretched to the breaking point--seems greater in the District than almost any other American city."

The other judges in the ruling, curiously enough, sort of agree with Williams, noting that if the District hadn't done such a sloppy job of legal work, the city would have raised the safety issue in the lower court, and this appeals court would have been able to uphold the ban on beards.

There are two basic kinds of breathing masks: One creates positive pressure, forcing air to blow out of the mask if the seal with the firefighter's face breaks. The other creates negative pressure, allowing smoky air to enter if that seal breaks. It's the latter type of mask that causes the danger to people with beards. In tests conducted by the D.C. fire department, some fire fighters passed, meaning that the seal on their masks didn't break because of their facial hair, and some failed.

But the D.C. government argued in its appeal that even the positive-pressure masks can be dangerous for bearded fire fighters--an argument the appeals court says the city failed to make when it counted, earlier in the process. Sorry, the judges say now: You may not raise a new issue at the appeal level.

The sad truth is that the scientific evidence confirms what common sense would tell you: Wearing a beard makes it more likely that a breathing mask would not seal properly and would not protect you in a fire. "The scientific literature clearly and consistently recognizes the fact
that facial hair at the sealing surface of a respirator causes increased respirator leakage," the ruling quotes a fire expert saying. "Persons with excessive facial hair . . . cannot expect to obtain as high a degree of respirator performance as persons who are clean shaven."

Thanks to what the judges describe as the District's sub-par legal work, the court never really gets to the question of whether religious beliefs are enough to overcome safety concerns. In our court system, it's often not about the truth. The unfortunate truth in this case is that the failure of the D.C. government to mount its legal arguments in a clear and timely manner will now subject some fire fighters to life-threatening danger.

Comments

Why is this DC's fault? So what if the city didn't get the courts to back their argument. If the firefighters want to wear a beard, then fine, THEY are taking their lives into their own hands. The firefighters should also have to sign a legal release knowing they are making this decision, and the city shouldn't be financially responsible for any accidents or deaths due to beard wearing. If the technology doesn't exist to adequately protect them, then there isn't much the city can do. DC appears to have muddled through another process, but at this point its up to the individual firefighters. I know this, if my religion asked me to wear a beard that could potentially kill me at work, I'm pretty sure I know which option I would choose.

Posted by: skynzfan | March 16, 2009 9:08 AM

Yes, DC screwed up again. However, it is not the fault of the city if a firefighter chooses to wear a beard after being told of the risk to their safety. The sad thing is that those who choose to wear a beard are going to be putting their fellow firefighters in danger too. What we need to happen now is for firefighters to refuse to work with those folks who choose to put themselves in additional danger because they insist on wearing a beards.

Posted by: tmarshallva | March 16, 2009 9:16 AM

I imagine like in the military, the clean shaven policy has to do with respirator masks sealing over the face. Which is why moustaches are okay. they don't interfere with the seal around the face. The fire department I'm sure wants to have to rescue carry a fellow fireman in full gear every time they enter a smoky building. This is just an excuse to play the intolerance card. Probably in favor of a large cash settlement.

There's always the police and EMT's if you don't want to shave.

Posted by: Dirtdart1980 | March 16, 2009 9:37 AM

Marc: How about you not pretend to practice law and I'll pretend not to be a journalist. It is apparent that your ability to read a court opinion is on par with my ability to write a 500 page biography. The court was citing sloppy work that lead to a summary judgment. ALL the court was saying was that there was enough evidence that raised a question. NOTHING in the opinion says that the evidence was conclusive, and it noted that since the District didn't raise the issue the plaintive had no opportunity to rebut the evidence.

MARC PLEASE STOP PRETENDING TO BE AN EXPERT ON THINGS YOU KNOW NOTHING ABOUT>

Posted by: crete | March 16, 2009 10:00 AM

well, I would be less than perfectly fine with the standard of a dress code for certain type of public positions like police officer, Fire Dept etc. saying no excessive beards.

Add in the safety concern and I think it's a slam dunk. It would be one thing if the only person endangered was the fireman with the beard, but the fact is his or (haha her) colleagues may find themselves trying to save an extra victim in an already treacherous situation.

Posted by: gconrads | March 16, 2009 10:08 AM

Is there a religion that mandates its male members be firemen? If not, then why didn't these men go into a different profession.

It's kind of like gays who join the military knowing its rules, then protest when they are found out and kicked out

Posted by: GWGOLDB | March 16, 2009 10:14 AM

Three points:

1. I don't know anything about face masks but I am a lawyer and I do know that when you try to make arguments on appeal that you didn't make to the lower court you usually fail. It sounds like that's what happened here. It's impossible to know whethert this was the fault of the lawyers, the DC Fire Dept for failing to provide the lawyers with the right info, or something else.

2. To the extent the beards are a safety hazard, they put at risk not only the beard wearing firefighter but all those who serve with him. So the suggestion of some commenters that the firefighter should be allowed to take the risk is off-base.

3. To GWGOLDB: The case is NOT AT ALL like the gays in the military dispute. The government has offered no scientific proof whatsoever for its "don't ask, don't tell" policy. All it has offered are conclusory assertions about "unit cohesion," assertions which have been rejected by every one of our NATO allies as well as the Israeli military, which knows a thing or two about fighting.

Posted by: Meridian1 | March 16, 2009 11:08 AM

yeah, but if a firefighter is injured and the beard leads to an injury guess who pays.

....

a similar concern: I already see that muslims, and immigrants from certain countries choose to remain outside the mainstream of the US as evidenced by their dress and their opinion of this country ( low)

I do not see immigrants subscribing ot our values and therefore they will not uphold the laws they do not agree with using the reason of religious differences.

well guess what?

who would trust follow orders from a policeman wearing a turbin? who would engage an attorney who does not udnerstand or agree with rights of women?

Who would sent their girl children to a public school that employed immigrants that do believe girls should be educated?

Women might find it not worth their while to go to a muslim doctor>

so it is not just what they wear that is the issue, it is the fact they do not want to uphold our rights. The very rights they wanted for themselves.

we have done to this country what Hitler or Stalin could not do.

Posted by: JohnAdams1 | March 16, 2009 11:41 AM

Fisher - is there a reason your blog is absolutely last on the front page? Even with my visit, it's still last? HAHAHAAHAA

Posted by: popopo | March 16, 2009 8:01 PM

3. To GWGOLDB: The case is NOT AT ALL like the gays in the military dispute. The government has offered no scientific proof whatsoever for its "don't ask, don't tell" policy. All it has offered are conclusory assertions about "unit cohesion," assertions which have been rejected by every one of our NATO allies as well as the Israeli military, which knows a thing or two about fighting.

Posted by: Meridian1

Meridian, you missed my central point: why do people join organizations whose rules they know in advance, then complain when they are found in violation of them?

As for gays and the military, the US military being a volunteer force draws from a certain segment of the population which is alas homophobic. Until that changes there's no sense is gaining a few thousand gays while losing tens of thousands of "hetero" volunteers.

Gays can still perform many of the same functions serving as civilians, as many do.

Posted by: GWGOLDB | March 17, 2009 8:54 AM

As a former volunteer firefighter, I had had to help rescue a fellow firefighter who had become incapacitated due to a failed mask seal.

While it is easy to say "Let the firefighters sign a release and do as they wish" the reality of it is: If they get into trouble, others' lives will be put at risk trying to save them.

The prohibition against beards has been a long standing, common sense rule that firefighter advocacy groups have supported for ages. It is a shame that despite the advances in technology -- the bottom line remains that this desicion, while personal -- is also very selfish, and will put not only the firefighter in question, but also any citizen caught in a fire and also the firefighter's 'brothers in arms'.

Posted by: Disbelief | March 17, 2009 10:05 AM

The ruling will also subject DC to lawsuits by firefighters who suffer harm because of the allowance of beards, not to mention leave and retirement payments for disabilities caused by beard-wearing firefighters.

Posted by: DoTheRightThing | March 17, 2009 11:59 AM

Maybe the FFs can take care of this themselves. Don't go into a burning building with a bearded FF covering your back or on your team. If the bearded FF falls, leave them where they fall and save the citizen's instead. The FFs with the beards know the danger and have chosen to accept it. Their partners should get to choose whether they accept the danger of working with somebody who may not be able to finish the job.

Posted by: SoMD1 | March 17, 2009 3:22 PM

It is easy to see that this is a one sided article from Mr. Fisher, nothing concerning the fire fighters arguement was clear. To be clear the fire fighters defense is that this is not safety issue because there has never been a single incident where a fire fighter has been injuried do to face mask seal.From the outside it sounds like a good rule("those darn firemen are crazy")NOT.Really because you are Chief Rubin and in charge you can't waste the taxpayers money in court saying something is a safey issue and dangerous when you have no foundation;he's been doing this for years.

Posted by: TheTruth35 | March 17, 2009 3:34 PM

You need to take a look at the history of the litigation and beards in the DC Fire and EMS Department. DCFEMS ALLOWED beards for everyone since the mid '80's. In 2001, then Fire Chief Ronnie Few, who didn't like beards, created GROOMING standards, in which beards were banned. The 2001 regulations applied only to uniform firefighters, and not to the civilian EMS personnel. A group of firefighters sued, and were granted a preliminary injunction against the regulations.

In 2005, DCFEMS instituted the beard ban again, this time identifying it as a safety issue, TO GET AROUND THE COURTS ISSUANCE OF A PRELIMINARY INJUNCTION AGAINST ENFORCEMENT OF THE GROOMING REGULATIONS. An additional group of personnel (firefighters and civilian EMS personnel) filed a second suit, and it was joined to the first.

Wearing beards in the 80's and 90's was fine (and allowed by the Department), but now in 2009 we are endangering other employees. Explain how that works.